14 N.Y.S. 906 | N.Y. Sup. Ct. | 1891
I think that justice requires a new trial in this case, and that it should be granted under the authority conferred by section 527 of the Code of Criminal Procedure. The people did not rest upon the presumption created by section 411 of the Penal Code, but attempted to prove the intent to use the dagger in violation of section 410, hy direct evidence. Thus the policeman who arrested the defendant, and'found the dagger concealed upon his person, was permitted to testify that one Grandi declared in the presence of the defendant at the station-house that he, Grandi, “was in a saloon on Elizabeth street, and the defendant took the knife out of his pocket, and said that he would stab him.” This testimony was highly prejudicial to the defendant, aud undoubtedly affected the consideration of his subsequent explanation with regard to the possession of the dagger. Ordinarily such testimony would have been admissible, but here it appears that Grandi spoke to the sergeant in English, and that the defendant could not speak our language, or else spoke it so slightly that the officer could not understand or communicate with him. It is quite apparent that the defendant did not comprehend the charge made by Grandi, and that, so far as any possibility of denying it on the spot was concerned, that charge might as well have been made to the sergeant in the defendant’s absence. The learned recorder very properly suggested at close of the case that the district attorney should have called Grandi as a witness. I think, too, that he should have called the sergeant. As it was, this defendant was convicted solely upon the testimony of the officer who arrested him, to the effect that he found the knife upon the defendant’s person. It is true'that this fact raised the presumption deeleared by section 411, but the defendant’s effect to rebut that presumption should not have been nullified or weakened by the declaration of the third person, which he was no more in a position to deny at the time and under the circumstances it was made than if he had been absolutely deaf. This defendant was shown to be a man of good character, engaged in a reputable calling, for nine years a resident of this country, and a man of family. He testified without contradiction that he never carried a knife such as was found upon him; that he had never before been arrested, or been in any trouble; that he picked up the knife in question accidentally, and that he had no other intention than to take it to his home» Of course, the jury were the judge of this story, and it was for them to say whether the presumption raised by section 411 was thereby rebutted. But it is quite clear that in weighing the defendant’s explanation the scale was turned in favor of the presumption by Grandi’s declaration at the station-house. I think a new trial should be ordered. All concur.